I happen to think it’s a fantastically misguided and stupid initiative, but I understand it’s not a popular position to assume. It’s easy to get just about anyone to agree that, in principle, driving whilst distracted with a smartphone is bad—though a great many people are hypocritical about it. All the same, nearly every driver has seen people drift off the road or almost cause an accident while having their head down in a smartphone “like an idiot”. It’s doubtless a sore spot for those who have been involved in such accidents or known people injured by them. Like laws against drunk driving, and indeed, most law-and-order grandstanding, it’s something that politically plays well and doesn’t attract much controversy. Thus, I would not be surprised to be pilloried for opposing it.

The first and most obvious objection comes from my repressed inner (moderate) Libertarian — with thanks my somewhat-less-moderate Libertarian schoolmate Claire for putting it into greater focus. The public welfare and the legal system doesn’t really benefit from a large proliferation of laws against doing small things that people are going to do anyway. Drunk driving hasn’t stopped because of stiff criminal penalties (more on that later). It’s already prohibited, and in many cases under penalty of criminal prosecution, to do things with a motor vehicle to which being distracted with a smartphone would give rise.

Yes, I understand that many laws exist to deter dangerous or frowned-upon behaviours regardless of whether they lead to death or injury in any given instance. I also understand the concept of criminal negligence and reckless endangerment: bringing an alligator to a school can expose one to criminal liability regardless of whether it actually bites any children, as it displays casual disregard for human life, and in general we would want to strongly deter people from bringing alligators to public places to begin with — even if they only cause actual harm a small percentage of the time.

Still, there’s a cost-benefit limit to any law. The implementation of any law carries with it enforcement costs, some amount of dedicated bureaucracy, increased load on the court system, and contributes in a rather general sense to a societal management burden and carry costs of sustaining an increasingly bloated legal code. Ever notice how the law books never get shorter, only longer? For the most part, the effect of laws about trivial matters is simply to give police another reason to stop us and search our property, extract fines, and, to one degree or another, puts our money into the hands of defence attorneys.

This law runs afoul of that limit, especially given the technological specificity with which it is articulated. For committed enthusiasts, its poor formulation gives rise to a fertile field of unsettled case law on issues such as what precisely constitutes a “hands-free” device. For instance, in another AJC article on the subject, it is stated:

You can still control your music through your vehicle’s radio system (if you have the technology to do it).

I have a basic 2007 Honda Accord, which is in no danger of having a modern touchscreen-based or steering wheel-controlled vehicle entertainment system. However, I do have an in-cabin mount for my iPad Mini, and use it to play music through the headphone jack. Is that part of my “vehicle’s radio system”? Another part of the article states that the law:

prohibits motorists from handling their phones and other electronic devices (like MP3 players) while driving. That means no using your hands to play music, switch playlists, etc.

An entertainment system built into the car is no different than an external one such as the aforementioned rig. To borrow the language of the actual bill, what exactly makes such a device a “standalone electronic device”? As with all stupid laws, the legislature wrote some metaphysical checks their weak philosophy budget can’t cash.

Next, while electronic devices are undeniably a very common source of driver distraction, and perhaps the most common, this sort of legal treatment gives them extraordinary weight over other activities which can generate a similarly distracting cognitive and sensory load. Those remain curiously legal. This includes anything from having an involved conversation with a passenger to fiddling with the lid on one’s coffee tumbler to manhandling a leaky taco. For that matter, anyone with a young child knows how easy it is to get into a wreck while contorting onesself to hand them a toy that has fallen on the floor; but then again, it’s almost as easy to get into a wreck when they’re screaming at the top of their lungs about the toy. As a general rule, petty laws which take aim at niche preoccupations are calculated primarily for optics and political points rather than substantive effect. The real problem is not electronic devices, it’s driving while distracted.

But all of this is really nitpicking that can “trouble” any law or regulation; by nature, laws are one-size-fits-all solutions which define arbitrary boundaries, simply because they must, and overlook many nuances. These are people who manage to use their electronic devices rather carefully while driving, all things considered, and there people who plough their cars into things and people with disturbing regularity in a sober and distraction-free state. Which is the greater “menace to society”? Laws aren’t tailored for outliers.

The real problem I have with this law is that it is yet another attempt to patch a symptom of a much larger social problem: horrific built environment and deficient public realm of America. The vast majority of the settled areas of the US consist of discardable suburban automobile sprawl. A car is a basic requirement for any social or economic activity in the middle 90% of America, outside of a vanishingly small handful of traditional urban formats such as NYC. This is even true in the vast majority of places we refer to as “cities”. It’s not really much of an exaggeration to say it would be better to be paraplegic with a car in America than to be fully intact without one; you can, at least, have a job with no legs, but you can’t have one without wheels. In this country, where almost everything is built at automobile scale, cars are, by and large, first-class citizens and people are not. Four wheels are a more significant extension of one’s corporeal being than one’s legs are.

And most Americans spend sizable chunks of their waking life driving. For those who endure the punishing commutes of “cities” like Houston, Atlanta, and Los Angeles, more so. From an empirical point of view, it should surprise noone that aspects of the rest of their life bleed into the copious time they spend chained to the steering wheel. People aren’t recklessly indulging their luxurious sensibilities, deigning to send text messages and emails — and in a motor-car no less! I can’t imagine anyone sending text messages while driving really wants to, they’re just stuck there. Given a walkable public realm and adequate public transportation, I’m sure, all other things being equal, they’d much rather play with their phone sat on a train, without being in command of a 3-ton metal behemoth — an “inherently dangerous instrumentality”, as one legally minded author put it. We don’t have a choice!

Yes, yes, I know, we do have a choice; we have the choice to put our phones down and focus on the road. But I suppose I’m of the empirical, behaviorist school of thought, which, truer to the objectivity of the scientific method, is focused on describing how people actually respond to the incentives and cues of their environment, rather than focused on tedious moralising about how they perhaps ought to behave. If you build a society that makes driving a basic requirement of doing absolutely anything at all outside one’s house, these are among the many externalities you’re going to get, because this is how people work. America, you brought this upon yourself.

This has a lot of parallels with DUI (driving under influence, aka drunk driving) laws. DUI exists everywhere in the world, but not to the scale that it exists in America. It’s an open secret that just about anyone who drinks to any degree here, whether at friends’ houses or at a nearby watering hole, has driven when they shouldn’t. How else are they going to get there and back?

How has DUI reached such “epidemic” proportions in America? I have a simple explanation: one has to drive for any social occasion! Most bars, clubs, taverns and pubs in America are located in shopping strips or detached buildings on the side of a road, and they have parking lots. How, do you suppose, did all the patrons get there? Over half the town’s work force would have to be employed as an Uber driver for them to get there by means other than their own car.

To be clear, the individual responsibility for drunk driving is born by the drunk driver. I don’t dispute that one should not drive after drinking. I’m not saying our built environment forces any individual to drink and drive and endanger others. Nevertheless, DUI is, in the aggregate, inevitable in a country that’s built at automobile scale and, by and large, exclusively for cars, whether you like it or or not. You don’t have to like it; it’s still going to be a fact. It takes a uniquely wicked type of sociopathy to build a whole country this way, then declare sanctimoniously that nobody is to drive after drinking. How do you resolve the immense, schizophrenic contradiction in messaging between MADD campaigns and police roadblocks on the one hand, and remote bars with huge parking lots on the other? How do you expect the average citizen to do so? How about a child growing up? It’s just not realistic public policy.

Realistic public policy is, in my view, about recognising that most people are somewhere in the middle of the bell curve of opportunism. Among those who drink with any degree of regularity, there are going to be 10% that just won’t ever drive — the paranoid, the preternaturally principled, those on probation for a DUI. There are also going to be the 10% who will always drive, totally wasted, no matter what, after partying every weeknight; those sloppy repeat offenders are the ones we love to hate with our DUI campaigns. But most people aren’t one or the other; all other things being equal, they generally prefer to be rather law-abiding and make the safe choice, but from time to time they will drive with some degree of intoxication just because it’s far and away the path of least resistance. They probably won’t get pulled over, and if they will, they will probably be fine most of the time. Every once in a while they won’t be, and a few of them will get in trouble with the law, because the DUI laws, as written, are hard to comply with. It’s very hard to gauge one’s blood-alcohol level. And there are all kinds of other tools police have, ranging from subjective perception of impairment to gotchas and entrapping features in US law enforcement interactions.

That middle 90% is who laws should target, and this law doesn’t capture that awareness. Driver-distracting devices work the same way. There are people who will never, ever, ever touch an electronic device whilst behind the wheel of a car. There are pathological texting addicts who are miraculously still alive, despite weaving casually in and out of lanes on an everyday basis as they thumb out WhatsApp and Snapchat messages. But if you make the middle 90% drive for everything, they’re going to do “stuff” behind the wheel some of the time, though they’ll be cautious and, all other things being equal, prefer to avoid it most of the time. Still, they’re going to be bored. They’re going to be put upon by work-related communication. As a practical matter of observation, it’s psychologically inevitable. Life doesn’t stop just because you’re caged in a car.

You can’t make laws prohibiting the normal distribution of externalities. That’s a weak, intellectually feeble cop-out. It’s a shitty band-aid. Sooner or later, we’re going to have to face facts and deal with the hard issue that we have built an overwhelmingly auto-dependent country and public environment, if it can even be properly called that. That’s going to bring car-related negative externalities, as people live out large chunks of their lives in cars. It’s going to bring carnage. It’s going to bring maiming. It’s going to bring obesity and diabetes. It’s going to bring depression, isolation and boredom. And yes, the odd instant messenger conversation.